Excerpted from a Bradley Arant Boult Cummings LLP blog by Anne Yuengert, J. William Manuel and Whitt Steineker

In our modern world of a booming CBD industry and an increasing number of states with legalized marijuana, can you terminate an employee for a positive drug test for marijuana? What if the test shows marijuana metabolites but you find out later it was for CBD oil (a legal substance)? Does federal law protect an employee in this scenario?

In Rocchio v. E&B Paving, LLC, a federal court in Indiana looked at this issue under the Americans with Disabilities Act (ADA) and found no legal protection for the employee’s use of CBD oil.

Just the Facts
E&B prohibited the use of illegal drugs and based the policy on safety concerns. It used a third party to administer random tests. E&B had a zero-tolerance policy and immediately terminated employees who tested positive. One of the prohibited drugs was marijuana.

Employee John Rocchio took his drug test, and the test revealed marijuana metabolites. The third-party testing administrator notified E&B of the positive test and Rocchio’s employment was terminated. A straightforward example of prohibited conduct and consequences, right? Not so fast.

You can’t fire me for using CBD oil!
Rocchio said he did not use marijuana, and the positive test was because he used CBD oil, a legally sold hemp extract. E&B relied on the drug test result rather than Rocchio’s plea of innocence.

Rocchio filed a lawsuit claiming E&B violated the ADA by terminating him. How was he disabled? He argued his employer “regarded” him as having a disability. The court found that even if Rocchio could prove that he was a qualified individual with a disability, he still could not prove he was terminated because of his disability rather than the positive drug test.

ADA doesn’t prohibit testing for legal substances
Just because the ADA does not say employers can test for legal substances like CBD oil, does not mean they can’t. Rocchio argued because the ADA explicitly permits entities to prohibit the use of illegal drugs and to test for the use of illegal drugs, but does not explicitly permit bans of legal drugs or testing for legal drugs, it follows that “it violates the ADA” if an entity takes an adverse action against an employee who tests positive from the use of CBD oil, a legal substance.

The court held the ADA’s lack of explicit permission for a company to ban the use of legal substances does not mean the ADA prohibits such a ban. Also, E&B was not testing for CBD oil — it was testing for marijuana. The court pointed out Rocchio presented no evidence that E&B knew the positive test was because of CBD oil. The report from the third-party testing administrator reported marijuana metabolites — not CBD oil.

No evidence of perceived disability
Mr. Rocchio’s only evidence of discrimination is his argument that defendants’ policy of terminating employees who test positive for drugs “categorically” “regards” them as users of illegal drugs and, because defendants cite safety concerns as the rationale behind the policy, as having an impairment under the ADA.

Not so fast, said the court. First, just because E&B has a drug testing policy for safety reasons does not mean it automatically believes every employee who tests positive has an impairment under the ADA. Even if E&B thought some employees who test positive will have an impairment, that does not mean it thinks all of them are impaired. Rocchio had to show that E&B thought he had an impairment. Second, an employer “does not have to tolerate unacceptable behavior” — like a positive test for illegal drugs — “even if that behavior is precipitated by an employee’s disability.”

Finally, Rocchio had no other evidence of disability discrimination. The court found no ADA violation and granted E&B’s motion for summary judgment.

This case raises interesting issues. Rocchio says he was engaging in legal, off-duty behavior and it got him fired. This case suggests that if there is legal protection for him, it is not under the ADA. The facts that the court seemed to find most helpful were:

So, what can we learn? Your drug test may report CBD oil as positive for marijuana. You may want to warn employees about that potential. If you do not want to terminate CBD oil users, think about steps to be taken such as having CBD users disclose before testing. However, this case may have ended differently in a state with legalized marijuana. Check local laws to be sure.

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